High Court to Rule on Rights of Grandparents

WASHINGTON — The Supreme Court, taking on the issue of grandparents’ rights for the first time, said Tuesday that it would rule this term on whether parents can be forced by law to allow visits with their children.

The high court’s ruling, expected by next summer, either could sweep aside the notion of grandparents’ rights or make clear that the concept of family goes well beyond two parents.

At issue are laws in all 50 states that permit grandparents to win legal visitation rights when a judge deems this to be in the best interests of the child.

Recently, however, in a counter-reaction of sorts, several of these laws have been struck down by lower courts on grounds that they interfere with parents’ fundamental right to raise their children on their own.

The fate of these laws will be decided in a messy dispute in which two grandparents from the Seattle area are battling in court with the mother of their two granddaughters over their right to see the girls.

The justices also announced Tuesday that they will decide the fate of the Violence Against Women Act, a new type of hate-crime law that gives victims of sexual assaults and batterings a right to sue their attackers for money damages.

Congress passed the measure in 1994 with little fanfare as part of a large anti-crime bill. But as the first test of the law has moved upward through the court system, it has become a cause celebre that pits women’s rights against states’ rights. The case involves a former college student who sued a football player, who she said raped her, and the university that declined to discipline him.

The issue of grandparents’ rights could hit close to home when it comes before the court in January. Six of the nine justices are grandparents, the exceptions being Justices David H. Souter, Clarence Thomas and Stephen G. Breyer.

The movement in favor of grandparents’ rights took off in the 1970s, experts said, just as the divorce rate soared in America. National groups such as the American Assn. of Retired Persons and the Child Welfare League of America have championed laws giving visitation rights to grandparents, so long as it is in the best interests of the child.

“It’s very painful when grandparents are cut off from any tie to their grandchildren,” said Shirley Marcus Allen, acting director of the Child Welfare League of America.

But Professor Joan C. Bohl, a family law expert at Southwestern University Law School in Los Angeles, said that she has become a critic of grandparents’ rights because it leads to bitter court battles.

“The litigation is very expensive and so draining. But the elderly have a powerful lobby,” Bohl said. “It’s become a fascinating tug of war. The legislatures expand these rights [for grandparents] but the courts have been restricting them.”

The case coming before the high court (Troxel vs. Granville, 99-138) fits that pattern.

Washington state lawmakers, siding with grandparents, said that “a person other than a parent” can seek visitation rights with a child whenever it is in the child’s best interests.

Under that law, grandparents Jenifer and Gary Troxel won a court order in 1993 to spend one weekend per month and one week during the summer with their granddaughters Natalie and Isabel Troxel. Their son, Brad, the girls’ father, had committed suicide earlier that year. He was never married to the girls’ mother, Tommie Granville, who later married and challenged the grandparents’ visitation order.

Last year, the state Supreme Court sided with the mother and struck down the law giving rights to grandparents. “Parents have a fundamental right to autonomy in child-rearing decisions,” the judges said, and states have no authority to grant “third-party visitations” against the parents’ wishes.

The grandparents asked the high court to reconsider that decision and the justices granted their appeal Tuesday.

The case testing the Violence Against Women Act began in September 1994, when Christy Brzonkala, a college freshman, stopped by the dormitory room of two football stars at Virginia Tech. She said that she was raped there but did not report the incident for several months.

The university then conducted a disciplinary hearing, found one player guilty of sexual assault and suspended him. But over the summer, the player, Antonio Morrison, was given a new hearing and his suspension was revoked.

When he returned to the football team in the fall, Brzonkala left school and filed a lawsuit against him and the university. Before her claim could go to trial, the conservative U.S. appeals court in Richmond, Va., threw out the law as exceeding Congress’ power.

Both the Clinton administration and the NOW Legal Defense Fund filed appeals on Brzonkala’s behalf and the Supreme Court granted both (United States vs. Morrison, 99-5 and Brzonkala vs. Morrison, 99-29). Their lawyers argued that “gender-motivated violence” is a matter of civil rights as well as an impediment to women seeking full participation in the workplace. Under the Constitution, Congress can pass laws to enforce civil rights and regulate commerce.

California Atty. Gen. Bill Lockyer, joined by 30 other top state attorneys, also asked the court to hear Brzonkala’s appeal and to uphold a national law designed to combat gender-motivated violence.

Conservative defenders of states’ rights, however, have taken the side of the football player. They have said that the case is really about federal meddling in state and local affairs. All the states have laws against rape, they said, and Brzonkala should have taken her complaint to the local police, not a federal court.

Roger Pilon, legal affairs director for the libertarian CATO Institute here, said that the case “is not about women’s rights. It is about reviving federalism and limiting the power of Congress.”

The Center for Individual Rights, the Washington-based law firm that won a landmark decision striking down affirmative action at the University of Texas, will represent Morrison.

The Brzonkala case again will force Justice Sandra Day O’Connor to choose between women’s rights and states’ rights.

Although the court’s five conservatives--led by Chief Justice William H. Rehnquist and including O’Connor--have voted as a bloc in recent years to strengthen states’ rights and to limit the power of Congress, O’Connor has split from them when women’s rights have been at issue.

In June, for example, she cast the deciding vote with the court’s liberal faction to allow school girls who are victims of severe sexual harassment to sue their schools for damages.

In a third case (Hill vs. Colorado, 98-1856) accepted Tuesday, the court will revisit the subject of anti-abortion picketing and rule on whether “sidewalk counselors” may be kept eight feet away from women entering abortion clinics.

Colorado made it a crime to confront patients on sidewalks leading to clinics. Lawyers for Pat Robertson’s American Center for Law and Justice said that this law violates the 1st Amendment.

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* CHALLENGE TO HMO SHIELD: Justices will hear a challenge to the federal law barring suits against HMOs. A14